Over at Dealbook, I take a look at the obvious solution to the Greek situation and the chatter regarding a sovereign bankruptcy procedure.
Yesterday's decision from the District Court court in the Madoff-Mets litigation is yet another example of why Congress desperately needs to revisit the safe harbors which exempt a host of financial transactions from the workings of the Bankruptcy Code (in this case, the Code as incorporated into SIPA).
The opinion is available here, but briefly, Judge Rakoff blew a giant hole in the trustee's suit against the owners of the Mets, dismissing all claims based on preference and constructive fraudulent transfer, whether under the Code or New York Law. The basis? Section 546(e) of the Code, which provides
Madoff was a stockbroker, in the loose sense that he was registered as a stockbroker. We now know that he was not actually doing any stockbroker like things for his investors. The Judge does not look into the definition of stockbroker in §101(53A) of the Code -- I think there might be an argument Madoff didn't meet it -- and moves right to the analysis of whether the transactions involved securities contracts and settlement payments.
Of course, there is no real reason to apply the safe harbors to this case. Madoff's transactions are not going to disrupt the financial markets if they were subjected to avoidance actions -- there was essentially no link to the financial markets whatsoever. But the Judge went with the planing meaning of the statute, which contains no such common sense exception. Hence the need for Congress to get involved.
For those of you following the Greek default "situation," I highly recommend Macro Man's take on the latest plan, which explains why this is not apt to make it very far. In short, it would involve British support for the Euro, which I seem to recall they are not part of. And it would hurt the UK's credit rating. The man at the left is skeptical.
When Congress recently compromised on balancing the budget, it chose to “save” Pell grants for undergraduates by throwing Stafford Loan for graduate students under the bus. It is unclear why this particular horse trade was necessary, and I am not even saying it was the wrong thing to do, but I do think people who might care (law students, law professors) should at least know about the change.
We have two married 60-something friends who are artists in Santa Fe and own a very simple home with a rental house in the front. The house is tiny by all but New York City standards, and since their income is always in flux (some months several grand, many months nothing at all), they live very close to the bone. No credit card debts, no car payments, no mortgage. The only fixed expenses they have are their $1,000 a month health care policy and a few utility bills. Generally, they get along just fine, but last month, when he ended up in the hospital for 5 days for literally swallowing wrong.
Somehow, they now allegedly owe $30,000, despite the expensive health care policy. I know, there is supposed to be a $5,000 deductible limit per person, but there is something about a pre-existing condition etc. etc. She called to ask: “they can’t take our house to pay a hospital bill, can they?” Given its location, this property is worth a lot, so we all know the answer.
Now I know that no one exemption scheme can work for everyone, but these people have done everything right. They have lived a Dave Ramsey debt-free life, and while they could have saved more in traditional retirement vessels, they relied on Santa Fe’s outrageous real estate values to set them up for life. So I ask you, are our exemption policies out of sync with reality? Do they work for most people most of the time? I am suddenly dubious.
Military personnel have long been targets of predatory creditors, going back to the moneylenders who followed the Roman legions. More recently, payday lenders clustered storefronts around military bases. The latest development is that subprime operators are hawking degrees at for-profit colleges to former and current service members.
Holly Petraeus, who heads up service member affairs in the federal Consumer Financial Protection Bureau, has a powerful account in an op ed for the NY Times of the targeting of current and former military personnel by for-profit colleges, including some seriously brain-injured Marines at Camp Lejeune, N.C. Appointing Petraeus, whose husband David is CIA director and former commander of American forces in Iraq and Afganistan, to this post was a stroke of genius. When general consumer protection arguments fail to get much traction, finding some military victims seems to help get the message across.
I recently presented a paper at the University of San Francisco School of Law, after which Professor Jesse Markham sent me a link about the FTC’s power to regulate payday loans. I have been a bit fixated on what the CFPB what might be able to do to regulate these products, particularly the entirely unregulated wolrd of internet payday loans (see my brief musings on that topic in the Harvard Business Law Journal), but I had no idea this had also caught the attention of the FTC.
A recent post on the FTC’s web page describes a District Court case brought by the FTC against Payday Financial, LLC, doing business as Lakota Cash and Big Sky Cash, who allegedly send documents to their borrowers’ employers that mimic a garnishment by the Federal government,
But this whole living will thing actually has a way to go -- my latest Dealbook column, up now.
There is still time to submit for this Call for Papers -- the extended window is closing on September 20. In addition to the Call for Papers, the section program at the Annual Meetings of the Association of American Law Schools features a talk by Federal Reserve Governor Sarah Bloom Raskin, and a scholarly panel on reviving financial institutions, their study and regulation -- banks and beyond.
If you happen to be in Reykjavik or thereabouts in early October--or scouting the web for papers putting Europe in perspective--this looks like a wonderful conference, not least for bringing economists, finance, policy, and legal types together in one place (and my contribution notwithstanding).
I'm testifying before the Senate Banking Committee on Tuesday about the role of the government guarantee in housing finance (a/k/a wtf do we do with Fannie and Freddie). My testimony is here. I expect it will manage to piss off people left, right, and center, but that's the nature of this GSE reform debate.
I'm not thrilled with the prospect of a government guarantee, but I just don't think that there's sufficient the market demand for credit risk on U.S. mortgages for a non-guaranteed system to function. Do we really think that $6 trillion dollars of interest risk investors are suddenly going to decide they want credit risk as well?
Realistically, if it gets hairy enough, the government will bail out the system, Dodd-Frank, Tea Party, and all that jazz aside. We'll keep chanting no more bailouts until we do the next bailout. (Remember the War to End All Wars?) That means that it's better to have an explicit guarantee and price for it.
Put differently, the choice we face is not guarantee or no guarantee. That's just a false dichotomy. The choice instead is between an explicit and an implicit guarantee. The implicit guarantee is a guarantee of moral hazard. The government will bail, but won't price for it. The explicit one certainly has its own problems, but at least it means we are being candid about the risks the government is assuming and trying to price for them and structure the guarantee to mitigate the risk that it will be used.
Congress just passed a bill overhauling the US patent system. The most significant change appears to be shift from a first-to-invent to a first-to-file system. Now, I am not a patent scholar and am wading into unfamiliar waters by opinining in any way on this shift, but it's rather fascinating to consider from a comparative perspective with security interests in personalty and realty, where first-to-file is generally the rule (with important exceptions like relation back for purchase money security interests and priority by possession or control).
So, as I understand it, a key problem with first-to-invent was that it was rather time-consuming to determine who actually invented something first. Administratively, that seems like a cumbersome system, even if it does help protect original thinking.
At first glance, first-to-file seems like a much easier system administratively, which will speed up the patent process and create more certainty in property rights--and certainty is the major goal of any property title system. It should eliminate litigation over priority of invention. (Put differently, we're going to a pure race system, not even race-notice.) But I suspect that first-to-file will just put more weight on the question of whether A's filing covers the same property as B's filing. If A and B have filed for patents on separate ideas, then there's no competition in rights and no problem. The danger, it would seem, is that first-to-file might encourage prophylactic filings. I'm not sure how easy that is to do, but encouraging a race could undercut the efficiency gains by not having to adjudicate who was first to invent.
Many have chided the financial press for the need to write entirely speculative articles about the prior day's market movements. But at least the financial press can be (somewhat) forgiven for their sins on the basis of tradition. What would the FT do with that big space on the back of the first section if it were otherwise?
But now the Washington crowd is getting in on the act and it must be stopped. The Hill's On the Money blog manages to commit two sins of casual empiricism within the first three paragraphs of their piece on the market's reaction to the President's jobs speech. First they say the markets "plummeted" in reaction to the speech, and then, conceding that there might have been other factors at work (say, maybe this), they conclude that "Obama’s speech had little countervailing effect."
So either they are doing a very sophisticated event study here, or they are just making stuff up. How precisely, do we know that the markets did not go down less than they would have without the speech?
According to the most recent data from Epiq Systems, there were 120,800 bankruptcy filings in August for a daily bankruptcy filing rate of 5,250. The August daily filing rate represents a year-over-year decline of 14.8% and a decline of 3.5% from July 2011.
These latest figures represent a somewhat deeper drop in bankruptcy filings than I had expected based on my earlier forecast of a 5-10% decline for all of 2011. With the past four months showing year-over-year declines of 10% or higher, it is beginning to look like the annual decline in the bankruptcy filing rate will be above 10%.
So the Swedish court's decision to deny Saab's reorganization petition gets me wondering if the company might not decide to file a US chapter 11 case. The only problem is that, best I can tell, Sweden has no provision for recognizing a foreign insolvency proceeding domestically. Thus, like most of these foreign chapter 11 cases, the proceedings would only bind international creditors (i.e., financial institutions) and that may not be enough to solve Saab's problems.
They should have never given up on those hatchbacks.
My latest Dealbook post deals with the circuit spilt that has developed with regard to a secured lender's right to credit bid when a sale is conducted as part of a plan.
The five lenders, Flobridge Group LLC, Silver Leaf Management and Upfront Payday, all of Utah; and Integrity Advance and Sure Advance LLC, were each sued separately for violating Minnesota’s small loan laws. The total U.S. market for Internet payday loans is estimated at $10.8 billion. These suits allege various violations, including automatic extensions of the loans and rolling the loans over by paying off an old loan with proceeds from a new one, as well as a failure to be licensed in the state. The reporter who wrote this story tried to call one lender and got a voicemail system that kept looping back through the list of options after pressing "0" for "all other inquires." One of the options included pressing 3 "if you would like to extend your loan for another two weeks." A customer-service representative at Sure Advance LLC of Delaware asked for an inquiry to be sent to an email address. No response had arrived by late Tuesday.
Phone calls to one borrower, Diane Briseno's, home in Maplewood came from India, the Minnesota attorney general's office discovered. Her caller ID showed the call was from the State of Minnesota. Briseno's son, 20, had started applying for a loan online but never completed the form. Regardless, he had left enough information that the phone calls started almost immediately. When Briseno called back to a toll-free number, she was told her son had taken out a $700 loan and needed to pay $6,000 immediately.
So Adam has come out in support of HR 2533, a bill which would force corporations to file in the jurisdiciton of their corporate headquarters. Just to lay my cards on the table, I generally think that we (the chapter 11 community) waste a lot of time worrying about venue, and that the putative evils of "forum shopping" are massively overstated.
But I wanted to comment specifically on a point that Adam raises: the notion that chapter 11 would be "cheaper" if corporations filed in their "home" jurisdiction.
I've got a Dealbook post up about an interesting dispute that has cropped up with regard to the definition of "Bankruptcy Credit Event" as used in the ISDA CDS definitions.
This Thursday, the House Judiciary will be holding a hearing on H.R. 2533, which would reform Chapter 11 venue and require corporations (which includes more than true corporations under the Bankruptcy Code) to file in the district in which they are headquartered or in the district in which a controlling affiliate has filed. So no more bootstrapping of Eastern Airlines, Enron, or GM via tiny affiliates. And no more Los Angeles Dodgers of Delaware.
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